M.R.SHAH,J. - (1.) Feeling aggrieved and dissatisfied with the impugned judgment and order dated 21.12.2017 passed by the High Court of Judicature at Bombay in Appeal (L) No. 447 of 2017 with Notice of Motion (L) No. 2541 of 2017 in Appeal (L) No. 447 of 2017, by which the Division Bench of the High Court has dismissed the said intra court appeal preferred by the appellants herein ­ original plaintiffs and has confirmed the judgment and order passed by the learned Single Judge dated 30.11.2017 dismissing the execution petition, the original plaintiffs ­ decree holders have preferred the present appeals.
(2.) The dispute is between the appellants herein ­ original plaintiffs (hereinafter referred to as 'PA Group') and respondent nos. 1 to 6 herein ­ original defendant nos. 1 to 6 (hereinafter referred to as RA Group') and also between original defendant no. 10 ­ Omkar Realtors and Developers Private Limited (hereinafter referred to as Omkar Builders'). The dispute was with respect to the asset of Kash Foods Private Limited admeasuring 4134 square meters plot at Worli, Mumbai. 2.1 That the appellants herein ­ original plaintiffs filed a Suit (L) No. 194 of 2015 against the respondents herein/original defendants seeking the relief against the transfer of the property of Kash Foods Private Limited in favour of respondent no.10 herein ­ defendant no. 10 - Omkar Developers. As observed hereinabove, the original plaintiffs Pawan Kumar Arya and others belong to PA Group and original defendant nos. 1 to 6 belong to RA Group, the brother of Pawan Kumar Arya. According to the original plaintiffs, original defendant no.7 ­ M.P. Recycling Company was jointly held by PA Group and RA Group with each credit or holding 50% of its shareholding. That M.P. Recycling held 25% of shareholding in Kash Foods. That Kash Foods owned a plot of land at Worli admeasuring about 4134.27 sq, meters. That 25% of the shareholding in Kash Foods was purchased by M.P. Recycling and the remaining 75% of the shareholding in Kash Foods was bought by RA Group in 2011 in their individual capacities. 2.2 That by conveyance deed dated 22.12.2012, a portion of the assets of Kash Foods was transferred to original defendant nos. 3 and 4 that are the members of the RA Group. A development agreement was executed between Omkar Builders ­ original defendant no.10, Kash Foods, original defendant no. 8 and defendant nos. 3 and 4, which was subjected to challenge by the plaintiffs in the suit. According to the original plaintiffs, original defendant nos. 1 to 6 in violation of the Right of First refusal clause in favour of M.P. Recycling to buy shares of Kash Foods as contained in the Articles of Association of Kash Foods, surreptitiously and behind the back of the plaintiffs bought 75% outsiders' shareholding in the names of defendant no.1's family. According to the plaintiffs, defendant nos. 1 to 6 entered into a purported Development Agreement dated 10.04.2013 with Omkar Builders, a third party developer, to develop the Worli property behind the back of M.P. Recycling and the plaintiffs. According to the plaintiffs, under the purported Development Agreement with Omkar Builders, defendant nos. 1 to 6 and Kash Foods received Rs. 25 crores from Omkar Builders and an additional Rs. 20 crores as security. That as per the case of the plaintiffs, defendant nos. 1 to 6 and Kash Foods also received 79,000 sq. ft. carpet area, i.e., 15 flats and 72 car parking spaces from Omkar Builders under the Development Agreement. According to the plaintiffs, 15 agreements for sale were registered and executed in favour of defendant nos. 1 to 6 and Kash Foods. 2.3 According to the plaintiffs, defendant nos. 1 to 6 did not give any rights/benefits in the said consideration/carpet area received from Omkar Builders either to the plaintiffs and/or to M.P. Recycling. The aforesaid led to the filing of the suit by the plaintiffs against original defendant nos. 1 to 6 seeking a 50-50 division of the benefits received by Kash Foods under the Development Agreement with Omkar Builders. That during the pendency of the suit, the suit came to be settled and the aforesaid suit came to be disposed of in accordance of the consent terms. As per the consent terms, out of 15 apartments that were to come up on the Worli land, 8 apartments admeasuring 27000 sq. meters in all were to fall to the share of the plaintiffs ­ PA Group and 7 apartments with a total area of 52000 sq. meters were to go to defendant nos. 1 to 6 ­ RA Group. According to the plaintiffs, as per the consent terms, the letter of allotment of their 8 apartments was liable to be executed by defendant no. 10 ­ Omkar Builders and the same was liable to be counter-signed by defendant nos. 1 to 6 ­ RA Group. According to the plaintiffs, defendant no. 10 ­ Omkar Builders had in accordance with the consent terms executed the letter of allotment in Annexure E' in respect of the 8 apartments, but defendant nos. 1 to 6 refused to abide by the consent terms and counter-sign the letter of allotment as per Annexure E'. 2.4 Therefore, in view of the refusal on the part of defendant nos. 1 to 6 ­ RA Group to abide by the consent terms and counter-sign the letter of allotment as per Annexure E', the plaintiffs initiated the proceedings under Order 21 Rule 34 of the Code of Civil Procedure for the execution of the consent decree viz. for execution of the document at Annexure E' to decree dated 14.08.2015, by defendant nos. 1 to 6 ­ RA Group and defendant no. 10 ­ Omkar Builders jointly and/or severally. The execution application came to be rejected by the learned Single Judge by the judgment and order dated 30.11.2017 by holding that neither Omkar Builders nor defendant nos. 1 to 6 ­ RA Group could have been directed at this stage to execute Annexure E' to the consent terms nor could the RA Group be restrained from dealing with the properties that form the subject matter of Kash Foods property. The learned Single Judge also observed that unless and until the supplementary consent terms are entered into between the parties, there is no obligation on the part of defendant nos. 1 to 6 to execute the letter of allotment in the form of Annexure E'. 2.5 Feeling aggrieved by the dismissal of the Chamber Summons/Execution Petition, the appellants herein preferred appeal before the Division Bench. That by the impugned judgment and order, the Division Bench of the High Court has dismissed the said appeal and has confirmed the judgment and order passed by the learned Single Judge dated 30.11.2017 dismissing the chamber summons/execution petition. That while dismissing the chamber summons, the learned Single Judge as well as while dismissing the appeal, the Division Bench has observed that no direction against the RA Group to execute the letter of allotment in the form of Annexure E' can be issued on the basis of clause 28 of the consent terms relied upon by the plaintiffs as there is nothing in clause 28 of the consent terms that casts an obligation upon defendant nos. 1 to 6 ­ RA Group to execute the letter of allotment in the form of Annexure E'. 2.6 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Division Bench of the High Court dismissing the appeal, confirming the judgment and order passed by the learned Single Judge dismissing the chamber summons/execution petition and refusing to issue any direction against defendant nos. 1 to 6 ­ RA Group to execute the letter of allotment in the form of Annexure E' with respect to 8 apartments, the original plaintiffs have preferred the present appeals.
(3.) Dr. Abhishek Manu Singhvi and Shri Dhruv Mehta, learned Senior Advocates have appeared on behalf of the appellants herein ­ original plaintiffs and Shri Shyam Divan and Shri Haresh Jagtiani, learned Senior Advocates have appeared on behalf of the respondents herein ­ original defendants. 3.1 Dr. Singhvi, learned Senior Advocate appearing on behalf of the appellants ­ original plaintiffs has vehemently submitted that in the facts and circumstances of the case, both, the learned Single Judge as well as the Division Bench have materially erred in dismissing the notice of motion and not issuing the directions as prayed against original defendant nos. 1 to 6 and defendant no. 10. It is vehemently submitted that by not issuing the directions as prayed in the notice of motion, both, the learned Single Judge as well as the Division Bench have virtually nullified the consent terms and the consent decree. 3.2 It is further submitted by the learned Senior Advocate appearing on behalf of the appellants ­ original plaintiffs that the absurd consequence of the impugned order is that though in terms of the consent terms/decree flats were allotted to both, the appellants and respondent nos. 1 to 6, the appellants have got nothing under the consent decree till date. It is submitted that on the other hand respondent nos. 1 to 6 have got not only 7 flats of double the area of the PA Kash Foods Property, but also Rs. 45 crores and are enjoying the above since about 2015 by mortgaging and dealing with their flats by raising large finances. It is submitted that as held by this Court in the case of Manish Mohan Sharma and others v. Ram Bahadur Thakur Ltd. and others (2006) 4 SCC 416 (paragraphs 31 and 32), the effort of the executing court must be to see that the parties are given the fruits of the decree. It is submitted that it is further observed in the said decision that the mandate is reinforced when it is a consent decree and doubly reinforced when the consent decree is a family settlement. It is submitted that it is further observed in the aforesaid decision that family settlements are governed by a special equity and are to be enforced if honestly made. Reliance is also placed upon the decision of this Court in the case of Kale and others v. Deputy Director of Consolidation and others (1976) 3 SCC 119. 3.3 It is further submitted by the learned Senior Advocate appearing on behalf of the appellants ­ original plaintiffs that the net result as of today is that both the consent terms and the consent decree in effect result in a zero-sum game with no transaction accruing to the benefit of the appellants. It is submitted that if that was so, there was no purpose to enter into the consent terms at all. 3.4 It is further submitted by the learned Senior Advocate appearing on behalf of the appellants ­ original plaintiffs that there is no basis, in any event, for the Division Bench to ignore the clear recognition of the appellants' entitlement under the consent terms/consent decree. 3.5 Now so far as the observations made by the learned Single Judge on the necessity to have supplementary consent terms, before the other terms of the consent decree are acted upon is concerned, it is vehemently submitted that the same is erroneous. It is submitted that the reliance placed upon clauses 13, 22, 23 and 27 of the consent terms by the learned Single Judge is absolutely misplaced. It is submitted that there is not a single clause in the entire consent terms and/or the consent decree which either expressly or impliedly postpones or in any manner makes the appellants' entitlement to get Annexure E' letter contingent upon respondent nos. 1 to 6's specious plea of simultaneity with the supplementary consent terms. 3.6 It is further submitted by the learned Senior Advocate appearing on behalf of the appellants ­ original plaintiffs that the learned Single Judge ought not to have read an implied term into the consent decree and/or consent terms which was never intended by the parties and thereby making the issuance of Annexure E' letter to the appellants conditional and/or subject to the happening of an event, i.e., filing of the supplementary consent terms, when no such clause finds place either in the consent decree or consent terms. It is submitted that it is a settled law that an implied term can be read into a contract only when it is so obvious that the parties intended something but inadvertently the same was left out. In support, reliance is placed upon the decision of this Court in the case of Satya Jain and others v. Anis Ahmed Rushdie and others (2013) 8 SCC 131 (paragraphs 32 to 35). 3.7 It is further submitted by the learned Senior Advocate appearing on behalf of the appellants ­ original plaintiffs that as such there is no such contingency supplied anywhere in the consent terms and/or consent decree and in fact clause 28 of the consent terms read with paragraphs 2, 3 and 6 of the consent decree is an antithesis of the finding that Annexure E' is contingent upon the supplementary consent terms. It is submitted that Annexure E' shall not depend upon the supplementary consent terms to be executed/entered into as observed by the learned Single Judge. It is submitted that clause 28 of the consent terms read with paragraphs 2, 3 and 6 of the consent decree unambiguously and unequivocally makes it clear that respondent no. 10 and respondent nos. 1 to 6 were to provide Annexure E' letter immediately and not at the RA Group's convenience and/or at a later date, as per the whims and fancies of respondent nos. 1 to 6 or contingent upon the supplementary consent terms. 3.8 It is further submitted by the learned Senior Advocate appearing on behalf of the appellants ­ original plaintiffs that none of the clauses in the consent terms and/or the consent decree provides the supplementary consent terms contingent upon Annexure E' letter and/or vice versa. It is submitted that as held by this Court in the case of Saradamani Kandappan v. S. Rajalakshmi and others (2011) 12 SCC 18, the order of performance should be expressly stated or provided, i.e., the agreement should say that only after performance of obligations of the vendors, the purchaser will have to perform her obligations. 3.9 It is further submitted by the learned Senior Advocate appearing on behalf of the appellants ­ original plaintiffs that even otherwise because of the total non-cooperation on the part of respondent nos. 1 to 6 and with a malafide intention respondent nos. 1 to 6 are not co-operating in execution of supplementary consent terms. It is submitted that out of the four items listed for valuation at clause D9(d) of the consent terms, item no. (a) is a company in which both brothers hold 25.5% of the shareholding each and the balance 49% is held by a third party; item no. (b) and (c) is a company and a property respectively which are held 50:50 by both brothers; item no. (d) is the PA Kash Foods Property which was to be valued for the purposes of adjustment. It is submitted that the valuation was not done despite numerous reminders by the appellants. It is submitted that several without prejudice emails were addressed to respondent nos. 1 to 6 calling upon them to execute and agree to the draft of the supplementary consent terms, which has not been done till date. 3.10 It is further submitted by the learned Senior Advocate appearing on behalf of the appellants ­ original plaintiffs that as such the plaintiffs entered into the consent terms to buy peace and to resolve the overall family dispute between the parties. It is submitted that as held by this Court in the case of Hari Shankar Singhania and others v. Gaur Hari Singhania and others (2006) 4 SCC 658 (para 42 and 43), a family settlement is treated differently from any other formal commercial settlement as such settlement in the eye of the law ensures peace and goodwill among the family members. It is submitted that it is further observed in the said decision that even technicalities of limitation, etc. should not be put at risk of the implementation of a settlement drawn by a family, which is essential for maintaining peace and harmony in a family. 3.11 Making the above submissions and relying upon the aforesaid decisions of this Court, it is prayed to allow the present appeals.;